Neil Gorsuch, left, and Anthony Kennedy, right. (Photos: File/ALM)
If President Donald Trump nominates Judge Neil Gorsuch to the U.S. Supreme Court and he is confirmed, he will be the fourth justice on the court to have served previously as a high court law clerk—a record number on the nine-member court.
Joining Chief Justice John Roberts Jr., Stephen Breyer and Elena Kagan, Gorsuch’s ascension would be another marker of the growing glitter and prestige of Supreme Court clerks. Not only can they command hiring bonuses of $300,000 at law firms eager for the cachet of a Supreme Court practice, but they also have a shot at someday returning to the court as a justice. Nine of Trump’s 21 announced possible nominees were once Supreme Court law clerks—including Raymond Kethledge, another leading contender.
Gorsuch, who sits on the U.S. Court of Appeals for the Tenth Circuit, clerked for the late Justice Byron White in 1993 and 1994, the first term after White retired. Clerks for retired justices are traditionally deployed to assist sitting justices in addition to the work they do for the retiree. Gorsuch helped Justice Anthony Kennedy that year, so is counted as a Kennedy clerk too. Kethledge was also a Kennedy clerk, serving in 1997 and 1998.
That Kennedy connection also means that Gorsuch would be the first justice in history to sit with the justice for whom he or she clerked. Roberts clerked for—and then succeeded, but never sat with—William Rehnquist. Breyer, who clerked for Arthur Goldberg, and Kagan, who was a Thurgood Marshall clerk, joined the court long after their justices left.
The potential nomination of a former high court clerk “goes to a question of diversity—or lack of diversity—in the sense that we are not only drawing from legal elites, but the elites among the elites,” said Roanoke College professor Todd Peppers, author or co-author of three books about Supreme Court clerks. “I suppose you could argue that the learning curve might be slightly less steep, although that is a bit of a stretch.”
Peppers added, “Being a former law clerk might also impact how you run your chambers. John Paul Stevens wrote the first draft of his own opinions because Wiley Rutledge [for whom Stevens had clerked] did.” If the new nominee “follows the work practices of his justice, he will undoubtedly swim in the cert pool and have law clerks prepare opinion drafts,” Peppers also said. “Is that necessarily a good thing?”
The so-called cert pool was created in the 1970s to streamline the handling of incoming petitions. Under the arrangement, each new petition is summarized by one law clerk for all the justices in the pool, rather than having clerks in each justice’s chambers summarize them. Justice Samuel Alito Jr. is currently the only justice who does not participate in the pool.
Stephen Kinnaird, a former Kennedy clerk who is now a litigation partner at Paul Hastings, agreed that a nominee’s experience as a clerk “will have some benefits in speeding the transition. He’ll know how to organize his chambers and work with his clerks. But it can be overstated.”
Kinnaird said Kennedy has a “wonderful approach with his clerks. They are involved in each of his cases, and they bat around ideas with him. But make no mistake. It is his chambers.”
One downside for some nominees who were former clerks has cropped up during confirmation hearings. Rehnquist was grilled in his two confirmation hearings—first in 1971 as associate justice, and in 1986 as chief justice—about memoranda he wrote for his justice, Robert Jackson. Some senators also asked Kagan about her work for Marshall.
Gorsuch might not have to worry about that problem, however. As a retired justice, White neither wrote nor voted on Supreme Court decisions while Gorsuch worked for him. Gorsuch’s fingerprints, so to speak, may be on decisions the retired White wrote when he sat, by designation, on the Tenth Circuit—the court on which Gorsuch now sits.
Former Clerks on Trump’s List:
Steven Colloton – William Rehnquist
Allison Eid – Clarence Thomas
Neil Gorsuch – Byron White and Anthony Kennedy
Raymond Kethledge – Anthony Kennedy
Joan Larsen – Antonin Scalia
Thomas Lee – Clarence Thomas
Mike Lee – Samuel Alito Jr.
Margaret Ryan – Clarence Thomas
David Stras – Clarence Thomas